The Maritime Labour Convention around the world The Maritime Labour Convention around the world 
The subject of the fair treatment of seafarers, often referred to as criminalization of seafarers, has been on the agenda of the maritime industry for over 20 years. Maritime casualties such as the Erika, the Prestige, the Tasman Spirit and the Hebei Spirit provoked intense national and international debate and concern about administrative sanctions and in particular criminal prosecutions that were taken against seafarers in the aftermath of a maritime casualty.
The IMO and the ILO jointly promulgated Guidelines on fair treatment of seafarers following a maritime accident (Guidelines) which were adopted on 1 July 2006. The Guidelines are complemented by the Casualty Investigation Code which entered into force in 2010.
The Guidelines outline standards to be met by all those who may be involved following a maritime accident: the port or coastal State, flag State, the seafarer’s State, the shipowner and seafarers themselves. The objective of the Guidelines is:
“to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary”.
“Seafarers are often described as ‘an invisible workforce’. And yet when accidents and incidents occur, all too often they become visible for the wrong reasons. In a number of high-profile cases, seafarers have been detained or imprisoned, often facing criminal charges, being deprived of their liberty and badly treated, without having faced trial or being able to respond to the accusation made against them; which is not fair, especially when the seafarers’ actions are dictated by events outside their immediate control”.
Kitack Lim, former Secretary General of the IMO
Taken from his address to the SRI International Workshop on the Fair Treatment of Seafarers, held at the IMO, 23 June 2017
Five years after the Guidelines were adopted, SRI conducted a survey of seafarers in eight languages on their experiences and perceptions of the risks and consequences of facing criminal charges in connection with their work. 3480 valid questionnaires were returned from seafarers of 68 different nationalities from 18 countries: Belgium, Brazil, Canada, China, France, Germany, India, Indonesia, Japan, Malaysia, Norway, Philippines, Russia, Spain, Turkey, Ukraine, the United Kingdom and the United States of America.
In 2018, in another survey by SRI of 5200 seafarers of 10 different nationalities, 82.68% of seafarers said that they were concerned about facing criminal charges in connection with incidents related to their work, such as fatal accidents, marine pollution and drugs found on the ship.
The Guidelines are recommendatory only and States have wide discretion in their implementation. State practices as concerns implementation of the Guidelines in national laws is widely divergent. Some States enact the Guidelines into their national laws by express reference to the Guidelines while other States consider that their existing laws already adequately protect the human and other legal rights of seafarers contained in the Guidelines.
The role of the MLC in this subject cannot be overlooked. In its Preamble, the MLC 2006 states that:
“given the global nature of the shipping industry, seafarers need special protection”.
The MLC also provides for mandatory inquiries into serious maritime casualties. Regulation 5.1.6 – Marine casualties states:
1. Each Member shall hold an official inquiry into any serious marine casualty, leading to injury or loss of life, that involves a ship that flies its flag. The final report of an inquiry shall normally be made public.
2. Members shall cooperate with each other to facilitate the investigation of serious marine casualties referred to in paragraph 1 of this Regulation.
3. Whenever a seafarer is detained for any reason in the territory of a Member, the competent authority should, if the seafarer so requests, immediately inform the flag State and the State of nationality of the seafarer. The competent authority should allow consular officers of these States immediate access to the seafarer and regular visits thereafter so long as the seafarer is detained.
Image credit: © Neil Patrick M. Sison
The MLC does not expressly apply the Guidelines to an official inquiry into any serious marine casualty under the Convention.
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MLC Guideline B4.4.6 – Seafarers in a foreign port states:
2. Seafarers who are detained in a foreign port should be dealt with promptly under due process of law and with appropriate consular protection.
The concern of seafarers regarding fair treatment if detained on suspicion of committing crimes is being addressed by new guidelines that are being jointly developed by the IMO and ILO.
Seafarers’ Voices:
“Charges are often brought too quickly before a proper and thorough investigation has been completed;”
“This is the only industry in which a person is fined for criminal prosecution, when in his whole life he has been a totally law abiding citizen, and for something that probably was no mistake of his;”
“We informed the police about the missing seafarer but were treated like criminals… ;”
“Usually authorities believe that it’s the crew which is to blame if anything happens;”
“Seafarers are not aware about countries laws. They should learn more before they come to the port;”
“They said that you would be either deported or put in prison, there were language difficulties too”
Watch SRI video on criminalisation below